TMI Blog2021 (4) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... 20,000/-, borrowed by her, that the said amount has already been repaid - The case of PW1 is that the appellant had lent the amount to the first respondent on his assurance. Whatever it may be, once the signature in Ext.P1 stands admitted, it is for her to rebut the presumptions; that has not been attempted. It is trite that the burden of proving a plea of discharge is on the person who raises the contention. Particulars of such repayment are lacking. It also does not stand the reason that, in spite of repaying the amount, she had not taken steps to get back the document alleged to have given as security - The learned counsel for the first respondent argued that the appellant is a fictitious person, such a person is not available and eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial First Class Magistrate, Thalassery, on a complaint preferred by the appellant alleging offence punishable under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the Act. The appellant contended that in consideration of a loan of ₹ 1,80,000/-, borrowed on 02.04.1999, and in discharge of the liability, the first respondent issued the Ext.P1 cheque dated 10.05.1999, drawn on the Catholic Syrian Bank Ltd., Thalassery Branch. The appellant presented the cheque for encashment through the Punjab National Bank, but it was dishonoured due to insufficiency of funds. Thereafter, the appellant caused to issue a lawyer notice, but it was returned unclaimed. Then the complaint was instituted whereupon, the first resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining leave of the Court under Section 378(4) of the Cr.P.C. 3. I heard the learned counsel on both sides. The learned counsel for the appellant argued that after having admitted the execution of the subject cheque, inconsistent stands have been taken by the first respondent. She did not even receive the notice, even though it was sent in her correct address. In cross examination of PW1, the power of attorney holder, she took the stand that the Ext. P1 was issued in consideration of ₹ 20,000/- borrowed by her from the power of attorney holder for the marriage of her daughter. But when gave evidence as DW1, she maintained that the amount was borrowed by her husband from PW1 and the Ext.P1 was handed over in a signed blank form, as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not received; the notice returned unclaimed and thus the complaint was preferred. After taking evidence, the trial court entered a conviction against the first respondent, which was reversed in appeal. 6. Whatever may be the divergent stand taken by the first respondent, it is quite patent that the Ext.P1 cheque belongs to her. She had also admitted her signature on the document. According to her, it was issued in a signed blank form, without incorporating other writings, namely the name of the drawee, the amount etc. Thus she wanted to make the court believe that the cheque was issued in such a manner, in consideration of a loan of ₹ 20,000/-, availed by her from the power of attorney holder; even though the amount was repaid, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. It is a judgment rendered by two hon'ble judges of the Supreme Court. In the decision reported in Kalamani Tex and Another v. Balasubramanian P. [ILR 2021 (1) Kerala 855], the above decision has been reiterated by the Hon'ble Supreme Court. According to the apex court, even if we take such an argument that a blank cheque was given, yet the statutory presumption cannot be obliterated. 8. Now, as noticed earlier, the first respondent has no dispute about the instrument and the signature found thereon. Ext.P1 bears the signature and the name o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torney holder. The case of PW1 is that the appellant had lent the amount to the first respondent on his assurance. Whatever it may be, once the signature in Ext.P1 stands admitted, it is for her to rebut the presumptions; that has not been attempted. 10. Moreover, a plea of discharge raised by the first respondent also remains on the papers. She had said that the sum of ₹ 20,000/-, borrowed by her was already repaid and still the cheque was not returned. It is trite that the burden of proving a plea of discharge is on the person who raises the contention. Particulars of such repayment are lacking. It also does not stand the reason that, in spite of repaying the amount, she had not taken steps to get back the document alleged to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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